The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER & FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court are defendants' motion for summary judgment filed on October 5, 2009. Plaintiff filed an opposition on November 5, 2009 and defendants filed a reply on December 9, 2009.
This case is proceeding on the third amended complaint (TAC), filed on July 12, 2007, with an Equal Protection claim against defendants Khoury, Mitchell, Schwartz, Grannis, Pearson, Tilton and Kernan; a retaliation claim against defendant Baker; and a due process claim as to defendants Arnold, Mitchell, St. Germaine and Cullen for plaintiff's placement and retention in administrative segregation.
Plaintiff suffers from a serious mental illness and is a participant in the Enhanced Outpatient Program (EOP). Plaintiff alleges an Equal Protection claim in that he was originally not given a porter job and no EOP inmates were given orientation pamphlets describing the porter job.
Plaintiff alleges that Baker retaliated against him by concocting allegations that plaintiff threatened to kill her which led to a placement in administrative segregation. Plaintiff alleges that this retaliation was motivated by plaintiff only calling Baker a loudmouth and saying he was going to call government officials about her and file civil lawsuits.
Baker filed a Rule Violation Report (RVR) charging plaintiff with threatening a peace officer. As a result, plaintiff was placed in Administrative Segregation (Ad. Seg.) and remained there for six months and the conditions caused a significant hardship due to his heat sensitive medication. During this time plaintiff was provided several hearings, yet plaintiff alleges that his due process rights were violated by the defendants.
III. Motion for Summary Judgment
Legal Standard for Summary Judgment Summary judgment is appropriate when it is demonstrated that the standard set forth in Fed. R. Civ. P. 56(c) is met. "The judgment sought should be rendered if . . . there is no genuine issue as to any material fact, and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c).
Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See id. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id.
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 630. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments).
In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 586 (citation omitted).
Plaintiff did not respond to defendants' undisputed facts and merely repeats the factual allegations from the complaint. The court has attempted to sift through plaintiff's facts to set forth the undisputed facts. The following of defendants' undisputed facts (DUF) are either not disputed by plaintiff, or following the court's review of the evidence submitted, have been deemed undisputed:
From November 2004 to August 2007, plaintiff was incarcerated at California Medical Facility (CMF). DUF #22. Plaintiff suffers from serious mental health illnesses and is at the EOP level of care. DUF #2. As a result of plaintiff's mental illness he is a member of the class in the class action lawsuit Coleman v. Schwarzenegger. DUF #5.
Plaintiff filed this action on March 14, 2006. DUF #10. Tilton was appointed as Acting Secretary of CDCR in April 2006 and appointed Secretary in September 2006. DUF #11,12. At all relevant times Kernan was CDCR's Director of Adult Institutions. DUF #13. At all relevant times Grannis was Chief of the Inmate Appeals Branch. DUF #14. At all relevant times Schwartz was Warden of CMF. DUF #15. At all relevant times Cullen was the Associate Warden of CMF. DUF #16. At all relevant times Arnold was a Facility Captain at CMF. DUF #17. At all relevant times Khoury was the Chief Deputy of Clinical Services at CMF. DUF #18. At all relevant times Pearson was a Facility Captain who served as an appeals examiner in the Inmate Appeals Branch. DUF #19. At all relevant times St. Germaine was a Facility Captain at CMF. DUF #20. At all relevant times Baker was a Correctional Officer at CMF. DUF #21.
Defendants Khoury, Mitchell, Schwartz, Grannis, Pearson, Tilton & Kernan On May 24, 2005, plaintiff field a grievance claiming that certain EOP inmates were being favored and given work as porters. DUF #24. Plaintiff also requested that EOP inmates be given orientation pamphlets about the porter job. DUF #25. On June 16, 2005, plaintiff received a response to his grievance that provided a description of the porter job and stated that the work schedules would be monitored to ensure even distribution. DUF #26. Plaintiff appealed this response stating that correctional officers still only used certain EOP inmates, and these inmates worked more extra hours than were allowed. DUF #27, Motion for Summary Judgment (MSJ), Plaintiff's Depo. at 240.
In response to plaintiff's appeal, non-defendant Dr. Tyler stated that EOP Orientation pamphlets would be pursued and every effort would be made to provide equal access to all EOP inmates. DUF #28. Defendant Khoury's name is the supervisor's name on the bottom of the appeal. TAC at 14. Defendant Khoury's name is also typed at the bottom of the second level response to the appeal, which was a denial, however the appeal was denied by defendant Mitchell on behalf of Khoury. TAC at 22. Plaintiff appealed to the third level of review which was reviewed by defendant Pearson and denied by defendant Grannis. TAC at 24.
Plaintiff was eventually given a job as a porter for four hours, one day a week, for two to three months, until he was placed in Ad. Seg. MSJ, Plaintiff's Depo. at 241-42. No EOP inmates at CMF received orientation pamphlets because the pamphlets were still being developed. DUF #48.
On January 31, 2006, defendant Baker was responding to inmates yelling "man down" when plaintiff made a statement to Baker. MSJ at 157-58. On January 31, 2006, defendant Baker, filed a RVR against plaintiff alleging that plaintiff threatened to kill her. DUF #58. Plaintiff filed an inmate appeal on February 2, 2006, alleging that defendant Baker concocted the RVR regarding the threat, and filed the RVR to retaliate against plaintiff. MSJ at 7.
Defendants Arnold, Mitchell, St. Germaine & Cullen
Plaintiff was placed in Ad. Seg. on January 31, 2006, due to the incident with defendant Baker. DUF #63. On February 1, 2006, plaintiff was provided with an Ad. Seg. Placement Notice (CDC-114-D) form. DUF #64, MSJ at 348. This form described the reasons for plaintiff's placement in Ad. Seg. DUF #66. On February 1, 2006, plaintiff met with defendant Arnold for an initial hearing regarding the Ad. Seg. placement. DUF #67. Plaintiff provided defendant Arnold a list of questions that plaintiff wanted an investigative employee to ask witnesses in relation to defendant Baker's report. DUF #68. The Institutional Classification Committee (ICC) met on February 8, 2006, to review plaintiff's retention in Ad. Seg. DUF #71. At the meeting defendant Arnold, defendant Mitchell and a non-defendant were present along with plaintiff. DUF #72, 73. Plaintiff participated in the hearing. DUF #73. The hearing reflected that plaintiff's investigative employee interviewed the inmates plaintiff requested and the inmates stated that they did not hear plaintiff threaten defendant Baker. MSJ at 111. Nevertheless, the ICC ruled against plaintiff and retained him in Ad. Seg. Id. On February 12, 2006, plaintiff filed a grievance against defendant Arnold for allegedly violating his due process rights regarding the placement in Ad. Seg. and the hearing. DUF #77.
On March 15, 2006, the ICC, including defendant Arnold met to review whether plaintiff should remain in Ad. Seg. DUF #78, 79. The ICC noted that plaintiff had been found guilty of the lesser included offense of action leading to violence based on the incident with defendant Baker. DUF #80. Plaintiff attended this hearing and actively participated. DUF #81. The ICC decided to retain plaintiff in Ad. Seg. pending referral for a transfer to another institution due to defendant Baker's safety concerns. DUF #82.
On March 17, 2006, plaintiff was issued an RVR for destruction of property after yelling he needed to go the law library and then broke the lock to his cell door. MSJ at 117. On April 12, 2006, plaintiff attended another ICC hearing, that included defendant Cullen. DUF #85, 86. Plaintiff actively participated in the hearing. DUF #88. The ICC reiterated that plaintiff would be kept in Ad. Seg. pending transfer to another institution. DUF ...